State v. Meyers

• Decision Date: 15 October 1895
• Citation: 46 Neb. 152,64 N.W. 697
• Parties: STATE v. MEYERS.
• Court: Nebraska Supreme Court

46 Neb. 152

64 N.W. 697

STATE

v.MEYERS.

Supreme Court of Nebraska.

Oct. 15, 1895.

Syllabus by the Court.

1. One who by reason of insanity or imbecility is unable to comprehend the obligation of an oath, or to understand and intelligently answer the questions put by the court upon a voir dire examination, is, under the provisions of section 328, Code Civ. Proc., incompetent to testify as a witness.

2. Evidence of the complaints of the injured person in a prosecution for rape are admissible only as corroborative of her testimony, and are not, except when made in extremis, admissible as independent evidence of the offense charged. Oleson v. State, 11 Neb. 276, 9 N. W. 38.

3. When, in such case, the injured female does not testify as a witness, her declarations relating to the alleged assault are not admissible in evidence, and the fact that she is incompetent to testify, on account of imbecility or for other reasons, is wholly immaterial. Hornbeck v. State, 35 Ohio St. 277.

Exceptions to district court, Richardson county; Babcock, Judge.

William Meyers was charged with rape, and a verdict for the accused rendered under direction of the court. The state brings exceptions. Overruled.C. F. Reavis and Edwin Falloon, for the State.

F. Martin, for defendant.

POST, J.

The defendant below, William Meyers, was charged with the crime of rape, alleged to have been committed upon one Elizabeth Schuler. A trial was had in the district court of Richardson county, resulting in a verdict for the accused under the direction of the court. The county attorney, having at the trial excepted to the rulings in excluding certain evidence offered in behalf of the state, has filed a petition in error in this court in order to secure a review of the judgment of acquittal based upon said verdict. The said Elizabeth Schuler was produced as a witness, when objection was made to her competency on the ground that she is an imbecile and incapable of comprehending the obligation of an oath. She was examined at length by the court in order to determine the question of her competency, at the conclusion of which said objection was sustained. The state then sought to put in evidence certain declarations made by the said Elizabeth to her mother and sister, shortly after the alleged assault, tending to prove the commission by the accused of the crime charged, which were also excluded upon the objection of the latter, and which are the rulings now assigned as error. Section 328, Code Civ. Proc., provides that: “Every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases civil and criminal, except as otherwise herein declared. The following persons shall be incompetent to testify. First, persons of unsound mind at the time of their production. * * *” The competency of a person to testify as a witness concerning the matter in issue is, in the first instance, a question for the court; and where, as in the case at bar, the presiding judge has seen and personally examined the proposed witness, all presumptions are in favor of the correctness of his finding. As said by Norval, J., in Davis v. State, 31 Neb. 248, 47 N. W. 851: “The question of the competency of a person to be a witness must be left to the sound...